The Supreme Court on Thursday ruled the Affordable Care Act does not prevent tax subsidies from going to help poor and middle-class people buy health insurance in states that have refused to set up insurance exchanges under the health-care reform law.

The decision is a major victory for the Obama administration and the second time in three years the Roberts Court has ruled in support of the president’s signature domestic law. Fourteen states have so far established their own health insurance exchanges, while 36 states run by Republican legislatures ideologically opposed to the health care law have refused.

Chief Justice John Roberts again wrote the opinion for the Court, with Justice Anthony Kennedy voting this time with the majority to uphold the law. At issue in King was one of the cornerstones of the ACA: premium tax credits, otherwise known as subsidies, available to low- and middle-income people to help offset the cost of their health insurance premium.

The challengers in King claimed that the ACA only allows states, and not the federal government, to offer subsidies for health insurance purchases. One phrase in the entire health-care law was proof of this limitation, according to the challengers, who oppose expansion to health-care services. The challengers argued that Congress dictated that the subsidy structure would apply only to exchanges “established by the State,” and that phrase alone limited the availability of tax benefits solely to state-run exchanges.

The conservative Roberts Court on Thursday rejected this argument outright.

“Here, the statutory scheme compels the Court to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid,” Roberts wrote for the majority.

It was unusual that the Supreme Court took the case. Despite a handful of copycat lawsuits challenging the availability of subsidies peppering the federal courts, not a single federal court of appeals has ruled against the Obama administration in those challenges. A unanimous panel of judges on the Fourth Circuit Court of Appeals ruled in favor of the administration in King, and while a divided panel of judges from the D.C. Circuit Court of Appeals ruled that the subsidies were invalid, that decision was vacated after the entire panel of judges agreed to hear the case.

Thursday’s decision marks the third time in three years conservatives have run a challenge to some or all of the ACA up to the Roberts Court. The Court in 2012 upheld the individual mandate portion of the law, but last year partially ruled against the administration’s birth control benefit in theHobby Lobby decision.

Had the Court sided with the anti-ACA challengers in King, it could have thrown more than six million people off of health insurance coverage. According to the National Women’s Law Center (NWLC), that includes about 3.5 million women who benefit from the subsidies.

“The Supreme Court decision makes it indisputably clear that tax credits are available to those who qualify for them regardless of where they live,” Marcia D. Greenberger, co-president of the NWLC, said in a statement following the decision. “The law has made significant strides for women by prohibiting insurance practices that discriminate against women and requiring that women have coverage for critical services like mammograms, maternity care, and birth control.”

Greenberger continued: “The bottom line is that the ACA has made a profound difference in millions of people’s lives, and the Supreme Court has ensured that this landmark law will continue to deliver more and better health care for even more women and their families in the future.”

While Thursday’s decision is a definitive win for the Obama administration, it does not mark the end of conservatives’ legal challenges to the ACA. More than 40 challenges to the birth control benefit’s accommodation process are pending in federal courts, with at least one request before the Supreme Court to intervene in those challenges.

The U.S. Supreme Court will hear arguments Wednesday in King v. Burwell, the latest attempt to gut the Affordable Care Act. The arguments in King have been a long time coming. Almost before the ink had dried in Chief Justice John Roberts’ majority opinion on Republicans’ first swipe at the ACA, NFIB v. Sebelius, conservatives had begun concocting their next challenge. In 2012, conservative legal scholar Jonathan Adler and political analyst Michael Cannon, of the libertarian think tank the Cato Institute, published a paper arguing that four words, read in isolation from the hundreds of thousands of other provisions in the ACA, prove that Congress intended to punish low- and middle-income Americans in states run by Republicans ideologically opposed to the law. King v. Burwell has taken Adler and Cannon’s hypothesis and turned it into a full-fledged political and legal campaign to undermine the Obama administration’s historic health-care reform law.

At issue in King is one of the cornerstones of the Affordable Care Act: premium tax credits, otherwise known as subsidies, available to low- and middle-income individuals to help offset the cost of their health insurance premium. The challengers in King mimic Adler and Cannon’s arguments, claiming that the ACA allows only states, and not the federal government, to offer subsidies for health insurance purchases. For proof, they claim Congress dictated that the subsidy structure would apply only to exchanges “established by the State.” They argue that this phrase limits the availability of tax benefits solely to state-run exchanges. So far, 14 states have established their own health insurance exchanges, while 36 states run by conservatives ideologically opposed to the health-care law have refused.

This approach, the ACA challengers argue, was designed to work like Medicaid does, by motivating states to buy into the health-care law and establish their own exchanges. The plaintiffs claim Congress set up a simple carrot-and-stick approach with these four words: support the new health-care law and set up a state exchange, or we’ll punish your residents by holding back their tax credits.

Not so, argues the Obama administration. In its brief defending the federal subsidies under the ACA, the administration explains how the only way the challengers win is if the Court ignores the entire rest of the statute. Rather than cut off those 36 states that have failed to establish their own exchanges, which would leave residents either without insurance coverage or stuck with coverage they cannot afford, the ACA mandates that the federal government step in with its own exchange for purchasing insurance. It’s nonsensical, the administration points out, to claim that Congress built a law designed to insure as many people as possible only to restrict subsidies based on where an individual happens to live. Furthermore, the statute defines who qualifies for a tax credit based on income level, not their state residency. If Congress intended to limit the availability of insurance subsidies based on whether a state established its own exchange, the administration maintains, surely the text would reflect that limitation throughout.

But it doesn’t.

As of now, there is no disagreement among the federal appeals courts as to whether the Obama administration can offer the subsidies. The plaintiffs in King and the handful of other copycat lawsuits peppering federal courts across the country argue that the IRS, the administrative agency in charge of dealing with the tax credits under the ACA, abused its discretion when it issued the rule allowing subsidies in the federal exchanges, because that rule is not supported by the statutory language of the ACA. A unanimous panel of judges on the Fourth Circuit Court of Appeals in King ruled in favor of the administration, while a divided panel of judges from the D.C. Circuit Court of Appeals ruled that the subsidies were invalid. But that decision was vacated after the entire panel of judges agreed to hear the case. And I haven’t even touched on the various proceduralhurdles that should kick the plaintiffs in King right out of federal court. Those obstacles, as Adam Liptak points out in this piece for the New York Times, are reasons enough for progressives to take a breath and relax about the fate of the law—even though a loss for the administration would threaten to take away insurance coverage from millions of low- and middle-income individuals by making their coverage unaffordable.

So the Obama administration should have the legal advantage going into Wednesday’s arguments. But, as we learned in last summer’s ACA loss in Hobby Lobby, having the legal advantage before the Roberts Court is only half the battle. The real question is whether the Obama administration has the political advantage going into Wednesday’s argument. And I think they might.

Progressives don’t often look to Chief Justice Roberts to champion their causes, but this time maybe they should. During his time as chief justice, Roberts has proven himself to be both a tremendously skilled litigator and a savvy politician, which is why it is reasonable to see him ruling for the administration in this case. Of the myriad legal challenges to the Affordable Care Act so far, including to the individual mandate and the birth control benefit, King is the most obviously formulated, partisan attack because it essentially cribs from the Cato Institute’s arguments. This may make it a perfect fit for Justice Antonin Scalia, but not so much for Roberts, who must manage the Court’s already shaky reputation for partisanship.

Furthermore, the reality is the business community, despite what Republicans argue, largely supports the ACA. A ruling against the administration threatens to throw the insurance market into chaos, which is ultimately bad for business. And it’s difficult to imagine the Roberts Court issuing a decision that would be bad for business.

Of course, there is always the risk that the partisan temptation will be too great, and the conservative majority will do to the ACA what it did to the Voting Rights Act in Shelby County v. Holder, sending it back to Congress to “fix.” Like we’ve seen in the fight for voting rights, that’s a decision that would be disastrous on numerous fronts. Not only would millions of Americans find themselves without assistance paying for health insurance—they’d be left looking to Republicans in Congress for an answer during a presidential election year. And true to form, Republicans admit they have no plan to help those people, which means a Congressional “fix” is a euphemism for sending the ACA away to wither and die. That possibility has got to be a tempting grab for Roberts, who reportedly switched his vote to support the administration during the first health-care challenge after initially siding with conservatives to strike the individual mandate.

This disaster scenario would most heavily affect women of color. In places like Texas, which are already in the midst of a human rights crisis thanks to Republicans playing politics with health care, a decision gutting the ACA subsidies would affect more than a million women, 60 percent of them Latina. Just as it is difficult to imagine the Roberts Court issuing a ruling that would be bad for business, it is almost as difficult to imagine the Roberts Court issuing a decision that is good for women of color.

We likely won’t know until June if Adler and Cannon’s rogue legal theory cooked up in libertarian laboratories is a success. But do we know that no matter the outcome, King v. Burwell is not the end of conservatives’ pushback against the Affordable Care Act. Right now more than 40 legal challenges to the ACA’s accommodation to the birth control benefit post-Hobby Lobby are working their way through the federal courts, as well as challenges to both the employer mandate portion of the law and theadministration’s delays in implementing it. In each and every one of these challenges, women—specifically women of color—stand to lose the most should conservatives succeed in rolling back the ACA. That’s a point often overlooked by pundits parsing the costs of the King v. Burwell litigation, but I doubt it’s one overlooked by Republicans enabling these lawsuits.

Right now the only thing standing between Republicans and their efforts to strip millions of individuals of affordable health insurance is Chief Justice Roberts and his concern for the reputation of the Supreme Court. In the balance of harms at issue in King v. Burwell, we’ve got the fate of millions of individuals and their families versus the institutional integrity of the Court. At best, I consider the probable outcome of this case to be a toss-up.

When the Supreme Court effectively demolished the Voting Rights Act (VRA) this week, you’d have been right to think that the decision, penned by Chief Justice John Roberts, was a major setback for civil rights and the quest for racial equality in the United States. But it’s also a setback for the rights of all women, as well—African-American, Native-American, Latina, Asian, and white.

Civil rights activist and radio host Mark Thompson explained it this way on his SiriusXM show Make it Plain:

What they’ve done with the Voting Rights Act is to set up a situation where they can continue to do racial gerrymandering, they can gerrymander Republicans [to hold] state legislatures for decades, and then, at that state level, they will destroy a woman’s right to choose, they will destroy same-sex marriage. Don’t you all think for one minute that this is just about Black folk; this affects all of us.

If you have any doubts, consider this: Were it not for the VRA—and, specifically, the section of the act struck down by the Court—Wendy Davis’ historic filibuster of the draconian anti-abortion bill, SB 5, would have never taken place. That’s because, without Section 4 of the VRA, a redrawing of her Fort Worth legislative district by the GOP-controlled legislature would have robbed her of her seat in the state senate in 2012.

The GOP plan radically changed the demographic makeup of Davis’ district, among others, moving tens of thousands of black and Hispanic voters into neighboring districts. In fact, of the 94 precincts that were over 70% minority, Republicans cut out 48 (see maps of District 10 here). In the new map, blacks and Hispanics were placed in separate districts from each other and were outnumbered by the white conservative majority, which tends to vote Republican.

Davis and her constituents had one recourse: The Voting Rights Act. Under Section 5 of the landmark civil-rights law, election changes made in certain areas with a history of discrimination—including Texas and most other southern states—can be blocked by the federal government if they might reduce the voting power of minorities.

Davis’ hardscrabble background (daughter of a single mother with a sixth-grade education, and a single teen mom when she had her daughter) and legislative priorities (economic development of poor areas, education funding, support for civil rights) had galvanized her support among historically disenfranchised communities of color, and the votes she drew from among their members granted her a narrow win in her first run for her seat in the state senate.

So Davis challenged the GOP redistricting under Section 5 of the Voting Rights Act, based on her state’s place on the list in Section 4 that required “preclearance” by the federal government of changes to voting rules. Texas’ place on that list was well-earned, like the other nine states designated therein, because of its long history of disenfranchising voters of color.

Davis won the challenge, and was allowed to run from her district as previously constituted, eking out yet another narrow win over her Republican challenger.

Now that Section 4—that list of nine states and jurisdictions within seven others that were subject to federal review of voting rules—has been struck down by the Supreme Court on the laughable logic that racial discrimination against voters has been pretty much fixed, Section 5, which allows those alleging disenfranchisement in the Section 4 jurisdictions to submit their complaints for federal review, is rendered moot unless Congress acts to arrive at a new formula for scrutiny. No one expects that to happen.

We know from hard experience that the same people who oppose women’s rights also oppose civil rights law and LGBTQ rights. When progressives prevail either in policy or at the ballot box, it is because of strong coalitions among all the stakeholders. That’s one reason why you saw the LGBTQ-rights group GetEQUAL well-represented among the protesters in the Texas state capitol as the senate debated the anti-abortion bill—which would have closed most of the abortion clinics in Texas and imposed an unconstitutional 20-week abortion ban. That’s one reason why you saw civil rights activists supporting Davis’ filibuster.

You’d be forgiven for seeing, if you did, the Roberts decision on VRA as a strike at the heart of the progressive coalition—because it is. Not only does it create the conditions for cementing the double-power-smashing-whammies of race and gender for African-American and other women of color; it acts as a growth hormone for white, male power. Its effect will be to consolidate power among political entities that seek to roll back the individual rights of all who are not white, male, and heterosexual.

Groups like the NAACP Legal Defense Fund and the Lawyers Committee for Civil Rights Under Law will have their hands full, because without Section 4, states and other jurisdiction no longer have an incentive to avoid gaming the system for white or right-wing control, and each infraction will have to be litigated on behalf of the disenfranchised—people who traditionally lack the money and access to power to do so.

If you think the right’s attempts to suppress the vote were egregious in 2012, just wait until the next election. Better yet, don’t wait, because your constitutional guarantees will rely on the investment of all in the progressive coalition to stem a growing tide of efforts designed to make some votes more equal than others. It was only hours after the Roberts decision was handed down, notesRH Reality Check’s Jessica Mason Pieklo, that Texas Attorney General Greg Abbott issued a statement announcing immediate implementation of the state’s voter ID law, which had been on hold, thanks to the VRA’s now-defunct preclearance provision.

Wendy Davis, during an appearance on MSNBC’s All In With Chris Hayes, won the cheers of her supporters when she stated her aspirations to run for a state-wide office—maybe even the governor’s mansion. But her future as a politician may depend on such a move, because with the “demolition” of the Voting Rights Act (so described by dissenting Justice Ruth Bader Ginsburg), Davis’ current legislative district will likely be redrawn in such a way that she cannot win re-election to the Texas state senate. And she and her constituents are now robbed of any meaningful way to stop it.

As Mark Thompson said of the court’s smashing of the VRA: “This affects all of us.”

The legal challenge to the regulation that bars state money from going to any clinic or any affiliate clinic that provides abortion services like other abortion-funding cases turned not on access to reproductive health care, but the First Amendment rights of the clinics. When the government conditions the receipt of funds on promoting a particular agenda, the government is in effect subsidizing that speech. These cases involve a murky area of the law known as the “unconstitutional conditions” doctrine.

The unconstitutional conditions doctrine says, essentially, that a funding condition, such as excluding abortion services, can’t be unconstitutional if there is some way the government can impose that condition directly. In the case of Texas and the WHP program, that would mean that the regulations cutting of funding to Planned Parenthood and its affiliates is constitutional if the state could achieve the same goal–ending abortion services–directly and not by conditioning receipt of state funds to get there.

Thanks to Roe v. Wade the state of Texas clearly cannot unilaterally shut down abortion services, either legislatively or through some other means. So, it should be pretty clear that any regulation that attempts to do the same, under the unconstitutional conditions doctrine, should fail as an unconstitutional condition on other rights–in this case the association rights of women’s health providers.

But in a decision where up is down and black is white, the Fifth Circuit held that while the Texas restriction “functions as a speech-based funding condition, it also functions as a direct regulation of the content of a state program” and because states are generally given wide latitude to construct the content of state programs, this particular regulation survives.

In short, Texas created the WHP and can regulate the “content” of the program, as it sees fit, even if regulating that “content” unconstitutionally restricts the rights of others.

To come to this conclusion the court relies onRust v. Sullivan, a 1991 unconstitutional conditions case, involved a since-rescinded Title X regulation that prohibited abortion counseling, referral, and advocacy with Title X funds. The Supreme Court upheld the regulations, reasoning that the government could disfavor abortion within its own subsidized program, and that exclusively subsidizing non-abortion family planning speech did not penalize abortion speech.

Here, the Fifth Circuit reasoned that since it was the specific policy goal of the state to subsidize non-abortion family planning speech to the exclusion of abortion speech it was free to appropriate funds to promote that policy, because the authority of Texas to promote that policy would be meaningless if it were forced to enlist organizations as health care providers and message-bearers that were abortion advocates.

The decision, essentially, explodes open the precedent from Rust v. Sullivan by holding that everything is, essentially, content of the state’s WHP program. By deciding who is and is not allowed to participate, the state of Texas is directing the “content” of the WHP program by the 5th Circuit’s logic. Texas can constitutionally target Planned Parenthood for de-funding and so long as their reasons are grounded in dictating the “content” of the WHP program.

To be clear, the courts decision and analysis was in the context of lifting a preliminary injunction, so it is not a final read on the merits of the regulation. A trial on the merits is set to start in federal district court in Austin in October, but at this point reproductive rights activists hands are in a bind. The Fifth Circuit has already said, essentially, that at first blush it believes the regulations are constitutional, and given the glee the circuit seems to take in stripping women’s rights, another review would provide it an opportunity to solidify this holding into more bad reproductive rights law in the circuit. Finally, then-Principal Deputy US Solicitor General John Roberts, one of the lead attorneys defending the regulation at issue in Sullivan, argued in that case for overruling Roe entirely. Now, sitting as Chief Justice of the Supreme Court you have to think he’d love an opportunity to see that argument through.

]]>http://rhrealitycheck.org/article/2012/08/27/abortion-rights-and-judicial-bias-in-texas-planned-parenthood-funding-decision/feed/0Sotomayor, Obama, and Empathyhttp://rhrealitycheck.org/article/2009/05/26/sotomayor-obama-and-empathy/?utm_source=rss&utm_medium=rss&utm_campaign=sotomayor-obama-and-empathy
http://rhrealitycheck.org/article/2009/05/26/sotomayor-obama-and-empathy/#commentsTue, 26 May 2009 14:43:30 +0000Obama’s nomination of Sonia Sotomayor is the latest event in an interesting conflict between the President and conservatives. As a candidate, Obama was diplomatic, and as a President, he is adept at articulating and advancing policy without incensing opponents.

]]>Obama’s nomination of Sonia Sotomayor as Supreme Court justice is the latest event in an interesting conflict between the President and conservatives. As a candidate, Obama was diplomatic, and as a President, he is adept at articulating and advancing policy without incensing opponents. His thoughts on the role of the Supreme Court, however, were delivered in an unusual, unscheduled appearance at a White House press briefing on May 1, and his position was notably unequivocal. I think it’s one of the most fascinating elements of the Obama presidency thus far:

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.

Remember that Obama was a law professor at the same time that he was rising in politics. In this speech, and in his subsequent nomination of Sotomayor, he’s more legal scholar than politician—he knows what he believes, he has evidence, and he’s not backing down.

At the time, this Declaration of Empathy was an alarm bell for conservative legal groups, who had been gearing up for the Court vacancy since Obama was elected. “I hope for and I expect a fight,” said Wendy Long of the Judicial Confirmation Network in response to Obama’s distressing notions of fairness. Now that the President has announced his choice, these groups have a fixed target.

Stanley Fish has a nice summary of the argument over empathy in legal interpretation, and a timely profile of Chief Justice John Roberts by Jeffrey Toobin examines Roberts’s judicial-restraint conservatism and the originalist conservatism of Scalia and Thomas. The piece, which appeared in the New Yorker, concludes with the relationship between Roberts and Obama. Their ways of thinking first came head-to-head when the then-Senator Obama voted against Roberts’s confirmation as Chief Justice:

In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart. “It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” the Senator said. The first bill that Obama signed as President was known as the Lilly Ledbetter Fair Pay Act; it specifically overturned the interpretation of employment law that Roberts had endorsed in the 2007 case.

Opponents of the “Empathy Doctrine” argue that judges should not be agents of social change; that they should do as little as possible; or that everything we need to know is already in the Constitution. But the belief behind Obama’s philosophy is that no matter how constructionist or originalist or formalist a judge claims to be, he or she necessarily involves his or her specific, biased judgment. Judges, in other words, are human. Moreover, our legal system was created by decades of humans with decades of biases. This is what Wendy Long misses in her stunningly oblivious condemnation of Sotomayor as

“a liberal activist of the first order who thinks…that one’s sex, race and ethnicity ought to affect the decisions one renders from the bench.”

In Long’s world, sex, race, and ethnicity don’t matter. If that’s true, it’s hard to account for her alarm at a female, Latina judge ascending to the Supreme Court. It’s likely, though, that conservatives are more alarmed by Sotomayor’s origins than by her sex and race. A woman who comes from the projects, who’s seen how the law can fail people there, is dangerous.

Critics allege that Sotomayor believes in judicial activism. Activism, judicial or otherwise, has been responsible for such things as the legalization of abortion, the legalization of contraception, the legalization of interracial marriage, the desegregation of American schools, women’s suffrage, and the abolition of slavery. The people who took America from colony to country were activists. If Sotomayor is an activist, give me more of those.

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In part two of ABC’s interview with Gov. Sarah Palin, Charlie Gibson asked about a range of social issues, including Roe v. Wade. Because of the way ABC edited the interview differently for its evening news program, hour-long prime-time special on Palin, and late night news programs, different lines were cut, but the transcript below offers the most complete accounting of the interview as it pertains to Roe v. Wade:

Gibson: Roe v. Wade, do you think it should be reversed?

Palin: I think it should and I think states should be able to decide that issue.

Gibson: It’s a critical issue for so many women.

Palin: It is.

Gibson: You believe women should not have that choice?

Palin: It is a very critical and very sensitive and a personal issue also for so many women and men across this nation. I am pro-life. I do respect other people’s opinion on this also and I think that a culture of life is best for America. What I want to do when elected Vice-President with John McCain, hopefully be able to reach out and work with those who are on the other side of this issue because I know we can all agree on the need for and the desire for fewer abortions in America and great support for adoption, for other alternatives that women can and should be empowered to embrace to allow that culture of life. That’s my personal opinion on this Charlie.

Gibson: John McCain would allow abortion in the case of rape and incest, you believe in it only in the case of when the life of the mother is in danger.

Palin: That is my personal opinion.

Gibson: Would you change and accept it in rape and incest?

Palin: My personal opinion is that abortion allowed, if the life of the mother is in danger, please understand me on this, I do understand McCain’s position on this. I do understand others who are very passionate about this issue who have a differing view. The problem is there are too many abortions and women are hurt and I just believe it is time we evolve the debate even, into more long-term solutions for the issue we’re talking about.

It seems odd to respect other people’s "opinions" on the issue of Roe, but not respect their "choices." Repealing Roe v. Wade will not stop abortion, only make criminals of women who seek them. Women will be hurt most by not being able to make the best private medical decision for themselves and their families. On the issue of adoption, while everyone can agree it is one important choice, it is a far better talking point, for politicians in both parties, than it is an actual reality in the lives of most women with unintended pregnancies. According to Guttmacher’s Cory Richards,

Politicians from both parties frequently promote tax credits and
other incentives to ease the way for adoptive parents to demonstrate
that they want to "do something" about abortion. Facilitating
adoptions, especially of hard-to-place children, deserves our strong
support. But it does nothing to affect the abortion rate. To assert
that it does is either ill-informed or simply cynical, and it should
stop.

Meanwhile, we know that very few women actually place their infants
for adoption. In the United States, fewer than 14,000 newborns were
voluntarily relinquished in 2003 (the latest year for which an estimate
is available), according to the U.S. Department of Health and Human
Services. That proportion — just under 1% of all the children born to
never-married women — has remained constant for almost two decades.
It’s down considerably from the early 1970s, but even in those days,
more than nine in 10 unmarried women who gave birth kept their babies.

As good as the adoption talking point is, the other tried and true talking point for anti-choicers is all about "states’ rights". Here is the reality.

Twenty-three states would automatically ban abortion if Roe is overturned, and according to Donna Crane of NARAL Pro-Choice America, "the reversal of Roe would clear the way for a Congress currently dominated by anti-choice politicians to ban abortion and thus override any state laws guaranteeing a woman’s right to choose."

The social conservative mantra of "states’ rights" only matters if the states are doing what the social conservatives want them to. Recall that Oregon twice passed it’s Death with Dignity Law (94 and 97), only to see social conservatives attempt to overturn that state law twice in Congress, and twice in the federal courts. The most conservative Justices on the Supreme Court; Scalia, Roberts and Alito — the three most often associated with "strict constructionism" or " not legislating from the bench" — especially to overturn an issue reserved to the states, were in the minority of the 6-3 Gonzales v. Oregon decision upholding the rights that Oregon citizens voted themselves. The conservatives voted against states’ rights when they didn’t agree with what the state had done.

Social conservatives will not be satisfied returning the issue to the states. They will tie up Congress with votes to ban abortion just as they have for the past 30 years. Social conservatives will wage war in every state legislature continuing their ever more extreme brand of violence and uncompromising politics, using this issue to divide the nation and impose their religio-political agenda for another generation, rather than try to bring us together around an education and prevention agenda, like the Prevention First Act that many progressives support. If you think the nation is divided now, just wait to see what the extremists in the anti-choice movement will do to pass abortion bans in every state.

As nice as the "working together" talking point might sound, the fact is John McCain has had plenty of opportunity to work to reduce unintended pregnancies in his 26 years in Washington.

The mainstream media can’t seem to get past questions about when life begins, and the most basic restatement of a candidate’s beliefs about whether or how women should have the right to make their own private medical decisions. So the candidates, in both parties, get away with pat answers and soundbites that don’t begin to reflect the realities of sexual and reproductive health that women face everyday.

It’s time we hold the media and candidates in both parties accountable and force them to discuss the realities of sexual and reproductive health, not just their carefully crafted talking points as they try to broaden their appeal.

]]>http://rhrealitycheck.org/article/2008/09/12/video-the-gibson-interview-palin-roe-v-wade/feed/9Are Democrats Backpedaling on Abortion Rights?http://rhrealitycheck.org/article/2008/07/08/are-democrats-backpedaling-abortion-rights/?utm_source=rss&utm_medium=rss&utm_campaign=are-democrats-backpedaling-abortion-rights
http://rhrealitycheck.org/article/2008/07/08/are-democrats-backpedaling-abortion-rights/#commentsTue, 08 Jul 2008 07:00:00 +0000It's an official quadrennial tradition: Every four years, self-described moderates advise the Democratic Party that its long-standing and electorally successful pro-choice position is the reason that "values voters" are deserting the party. We are told these voters could be brought into the fold if Democrats would temper their defense of women's freedom with tacit condemnation of the choices many women make.

This article originally appeared in Salon written by Kate Michelman and Frances Kissling and is reprinted here with permission from its authors. Following the article is an addendum written by Frances Kissling alone, and appearing for the first time on RH Reality Check.

It’s an official quadrennial tradition: Every four years, self-described moderates advise the Democratic Party that its long-standing and electorally successful pro-choice position is the reason that "values voters" are deserting the party. We are told these voters could be brought into the fold if Democrats would temper their defense of women’s freedom with tacit condemnation of the choices many women make.

John Kerry’s defeat in 2004, and exit poll claims that values were central to mainstream voters who went for George W. Bush, gave the idea new traction (although the meaning and the makeup of those value voters were subject to a lot of post-election debate). But 2008 presents Democrats with a new dilemma. The Democrats’ troubles with so-called values voters raise concern. But even more worrisome is a wildfire of women’s anger over the sexism faced by Hillary Clinton in the primaries. The discontent is largely focused on the media, but also on what is seen as the Democratic Party’s lack of a vigorous public rejection of that sexism. It goes deeper than one candidacy, and has its roots in a more quiet anger that politically engaged Democratic women have felt about the party’s taking women for granted for many years.

Suddenly, almost unexpectedly, with many Democratic women restless and anxious, the concerns of women are once again important. So far the party’s strategy in dealing with disaffected Clinton supporters, in particular, involves focusing on women’s understandable fears that a John McCain administration would limit abortion rights and even overturn Roe v. Wade, and promising that Democrats will clearly do better.

That’s why it’s so remarkable that in recent weeks, Democrats, including Sojourners founder Jim Wallis, have suggested that the party may need to take another crack at tempering its strong platform support for abortion rights by making "abortion reduction … a central Democratic Party plank in this election." In a recent interview with ABC News, Wallis said he planned to talk to his "good friend" Barack Obama about an abortion reduction plank, and said he had discussed the idea with party chairman Howard Dean and had the support of at least one member of the Platform Committee, the Rev. Tony Campolo. "Abortion reduction should be a central Democratic Party plank in this election," Wallis told ABC News. "I’ll just say that flat out."

While a Wallis spokesperson quickly backpedaled and said Wallis was "not actively campaigning" for an abortion reduction plank, the idea of a Democratic "third way" on abortion is bound to come up again. This time around, party officials and Democratic candidates will be well advised to tread carefully.

As two strong feminist Obama supporters, we know women are well aware that Democratic policies, as well as Democratic leaders, are far less sexist and far more likely to empower women than the policies and leaders of the GOP. For those reasons, we believe, even the most frustrated Hillary Clinton supporters will come around. But telling women that the Democrats’ commitment to abortion rights is what should drive their vote, while simultaneously suggesting, as Wallis and his allies do, that given the choice, having a baby is a more moral choice than abortion, will be understood for what it is: condescending and sexist. It is likely to stoke, not slake, the flames of anger, since women are well aware of the moral dimensions of pregnancy; they were not a novel discovery made circa 2004.

Let us be clear: Reducing the need for abortion is sound policy,
and we have both worked in our careers to do so. The pro-choice
movement has been promoting such an agenda for the better part of two
decades — often, and ironically, over the opposition of the very
people who now claim to espouse it. In fact, Sojourners, the
organization headed by Wallis, does not include contraception as part
of its abortion reduction strategy, and Democrats for Life, the
political group most vocal about abortion reduction, refused to endorse
the family-planning provisions of the bill it initiated, "Reducing the
Need for Abortion Initiative," also known as the Ryan-DeLauro bill.

Why should the Democratic Party platform be framed by such groups,
who also seem ignorant of the fact that the platform already contains
all the elements necessary to reduce the need for abortion? The
platform supports access to family planning, the single most important
factor in preventing pregnancy, and promotes an economic program,
heathcare reform and protections for women’s equality that would, if
enacted, make it more possible for women who become pregnant and wish
to continue those pregnancies to keep and raise their children in a
secure environment.

What more could be meaningfully proposed? Going further down the
path of moral pandering on abortion is only likely to erase the gender
gap advantage that Democratic nominees had enjoyed among women in three
straight presidential elections — which plummeted in the Kerry-Bush
contest, resulting in George W. Bush’s second term and the appointments
of John Roberts and Samuel Alito to the Supreme Court. The stakes for
women could not be higher, and Democrats need to do better in defending
the moral right of women to choose, in every way: to choose to have a
baby, to choose to prevent an unwanted pregnancy, to choose to
terminate a pregnancy.

What then should Democrats and Sen. Obama do?

We need not wait for either the Democratic convention or the
election to move forward on reducing the need for abortion. Two
perfectly good bills are languishing in Congress. One, the Prevention
First Act, was introduced by Sen. Clinton; the other, the Reducing the
Need for Abortion Initiative by Rep. Rosa DeLauro and Rep. Tim Ryan, a
pro-life Democrat. These bills need to move forward and perhaps be
consolidated. (The Clinton bill does more for family planning, and the
Ryan-DeLauro bill more for women who want to continue pregnancies.)
Sen. Clinton is in a perfect position to make that happen, and we will
work with her on that goal. Moving these bills before the election will
give us a yardstick by which to measure members of Congress’
commitments to meeting women’s needs while recognizing their rights.

Sen. Obama will also have opportunities to show leadership. If and
when Wallis approaches him to talk about abortion reduction, Obama
should point him to the record of the Democratic Party on preventing
pregnancy, honoring a woman’s right to choose and supporting women who
need economic help in raising children. That’s worthy of praise, not
criticism. He could call on Wallis to become a supporter of family
planning for all women, and to defend the progress women have made on
their journey to full and equal rights.

Perhaps the most disturbing aspect of Wallis’ self-described search
for a moral statement on abortion is his apparent ignorance of the
moral basis of a pro-choice position. Thirty-five years of safe and
legal abortion, and solidarity with the millions of American women who
have had abortions, have led to pro-choice values that are sweeping in
their scope. Women of color, in particular, have had a profound impact
in defining "choice" by insisting on situating reproductive choice
within the much larger context of jobs, healthcare, human dignity,
child care and educational opportunities for low-income women — to
make pregnancy and motherhood a real choice for everyone; to make sure
abortion is a choice and never a grim default and, when it is a choice,
is safe and legal and never stigmatized by Democrats. Obama’s skills
could be used to enlist Wallis and others to support this expansive
vision of women’s rights and well-being.

Finally, Sen. Obama needs to set the tone within the Democratic
National Committee as well as within his campaign and reach out to
women. The development of a women’s rights policy must be as high a
priority as a plan for world peace and an economic agenda. While both
men and women have a stake in women’s well-being, women’s preeminent
role in developing policies that affect their lives must be a central
commitment of the senator and the party.

As feminists who have proudly and enthusiastically supported Obama
for some time, we are convinced that this is exactly the approach he
will take. And while this approach is as old as feminism, it will be a
breath of fresh air in the party.

Frances Kissling’s Addendum

When Kate and I wrote this piece Obama’s comments in
Relevant Magazine on mental distress and late term abortions had not been
published. Speaking only for myself, I was troubled by them. Not
because Obama holds that late term abortions (and I assume he means
those in the third trimester) should be the legal exception rather than
the rule. Roe holds that the states can prohibit third trimester
abortions to health reasons, although it does not specifiy a method for
determining this. Several pro-choice members of Congress are on record
as supporting limiting such abortions to circumstances where there are
serious health risks for the woman. These members have never suggested
excluding mental health risks.

It is not clear if Obama is further narrowing the meaning of
serious mental health risks or simply saying that mild "distress" is
not a serious diagnosable condition and would not qualify as an
exception. That would leave open what other mental health conditions
would be serious health grounds for a third trimester abortion. I hope
this is what he meant.

At the same time the remark smacks of the kind of pandering I
am worried about. To satisfy those opposed to all abortions, candidates
are willing to make remarks that diminish women’s moral sensibilities
as well as rights and feed into right wing anti-abortion beliefs that
women and doctors will find a loophole to allow abortion under any
circumstance at any time in pregnancy. For Obama to feed into that
sentiment, even unwittingly, is unacceptable.

The limits or boundaries to a pro-choice position are not
carved in stone. Some supporters have absolutely no limits and believe
abortion should be purely the decision of the woman whatever stage of
pregnancy. They are in a distinct minority numbering about 17% of the
population. Most pro-choice supporters, including me, believe some
limits are reasonable especially if one believes that some balance
between women’s autonomy and rights and fostering a soicety in which
life in all its forms is respected would be wise. It would take more
space than I have now to flesh that concept out but at a minimum,
viewing abortion in the third trimester as an exception over which
medical evaluation is appropriate is beyond the pale of pro-choice views.

What is actually most absurd about the way we talk about third trimester abortions is the sqeamishness about acknowledging that the most frequent reason for such abortions has little to do with women’s health and more to do with fetal health and child survival. These abortions occur when women discover late in wanted pregnancies that the fetus is so severely damaged that birth would result in a condition that is incompatible with child survival and well being.

]]>http://rhrealitycheck.org/article/2008/07/08/are-democrats-backpedaling-abortion-rights/feed/2Bush in Your Bedroomhttp://rhrealitycheck.org/article/2008/01/03/bush-in-your-bedroom/?utm_source=rss&utm_medium=rss&utm_campaign=bush-in-your-bedroom
http://rhrealitycheck.org/article/2008/01/03/bush-in-your-bedroom/#commentsThu, 03 Jan 2008 07:01:54 +0000President Bush has used his years in office to limit reproductive freedom and stack critical posts with right-wingers bent on rolling back the clock.

]]> "On September 11, we saw clearly that evil exists in this world, and that it does not value life … Now we are engaged in a fight against evil and tyranny to preserve and protect life." – George W. Bush in 2002, linking abortion rights with terrorism, as he declared the 29th anniversary of Roe v. Wade to be "National Sanctity of Human Life Day."

Bush has used his Oval Office years to limit reproductive freedom and stack critical posts with right-wingers bent on rolling back the clock.

And now it appears yet another reactionary Bush appointee is on track to get a lifetime position as a federal judge…

Bush nominated Wyoming lawyer and former state representative Richard Honaker to the US District Court back in March, but the reproductive rights group NARAL believes he may soon get a hearing before the Senate Judiciary Committee.

Honacker authored a 1991 bill which would have outlawed most abortions, and has said that abortion is "wrong, and no one should have the right to do what is wrong."

If the nomination goes through, Honacker will stay on the bench long after Bush is out of office, and he'll join a growing list of appointees eager to regulate your sexuality.

A Top Ten list, so far…

1. Patricia Funderburk Ware

In 2001, Bush named abstinence-only proponent Patricia Funderburk Ware to be Executive Director of the Presidential Advisory Council on HIV/AIDS (PACHA). Ware's qualifications for the job of promoting "effective prevention of HIV disease" included criticizing condom use and lobbying against HIV/AIDS being in the Americans With Disabilities Act.

According to Coburn, the gay community "has infiltrated the very centers of power in every area across this country, and they wield extreme power… That agenda is the greatest threat to our freedom that we face today. Why do you think we see the rationalization for abortion and multiple sexual partners? That's a gay agenda."

Who else would you want advising the Bush administration on AIDS?

3. David Hager

Hager was one of three religious conservatives that Bush put on the Food and Drug Administration (FDA) Advisory Committee for Reproductive Health Drugs in 2002 and only public outcry prevented him from becoming its chairperson. Critics argued that in his gynecology practice, Hager had refused to prescribe contraceptives to unmarried women and had recommended Scripture readings to alleviate headaches and premenstrual syndrome.

A memo which Hager wrote helped persuade the FDA to overrule its own advisory panel in 2004, thus preventing the emergency contraceptive "Plan B" from being made more easily available. Critics assailed the FDA's decision as ignoring scientific evidence, but in Hager's assessment: "Once again, what Satan meant for evil, God turned into good."

A downright criminal side of Hager emerged when his former wife went public with the fact that he had been emotionally, physically and sexually abusive during their 32-year marriage, forcibly sodomizing her on a regular basis. As Hager's ex-wife told The Nation magazine in May 2005, "it was the painful, invasive, totally nonconsensual nature of the [anal] sex that was so horrible."

Hager left the FDA committee soon after The Nation article was published.

4. & 5. Lester Crawford and Norris Alderson

As Acting Commissioner of the FDA, Lester Crawford was notorious for blocking over-the-counter access to emergency contraception (EC).

Democratic senators initially halted Crawford's confirmation to head the FDA, but gave approval in June 2005 after he promised to take action on EC by September 1, 2005. Once sworn in, however, Crawford stalled yet again, despite the FDA Reproductive Health Drugs Advisory Committee's having voted 23 to 4 in favor of making EC available over-the-counter.

Dr. Susan Wood, the well-respected head of the FDA Women's Health Office, soon resigned in protest – and that's when things got really bizarre. Weeks after Wood stepped down, the FDA Women's Health Office sent out a mass email announcing that she would be replaced by Dr. Norris Alderson, who was duly listed on the FDA site as: "Acting Director, Office of Women's Health, Associate Commissioner for Science."

One small problem. Alderson is a veterinarian.

The administration appointed an animal doctor to be in charge of women's health. Speaks volumes, doesn't it?

To make things even weirder, Crawford himself suddenly resigned as head of the FDA in September 2005 (just months after having been confirmed), amid allegations of not having properly disclosed his financial holdings to the Senate.

In August 2006, the FDA finally approved making the EC "Plan B" available over-the counter to consumers 18 years and older.

6. John G. Roberts

Progressives balked in September 2005 when Bush put forward far-right extremist John G. Roberts to head the US Supreme Court. In Robert's illustrious career, he had fought against minority voting rights, argued against women's educational rights, and tried to limit the rights of women prisoners. A legal brief Roberts contributed to said that Roe vs. Wade was "wrongly decided and should be overruled."

Roberts became Chief Justice within weeks of his nomination, and as expected, has dragged the Supreme Court to the right. In the past two years, for example, the Roberts' court upheld the constitutionality of a federal anti-abortion law (the so-called Partial Birth Abortion Act) and decreased public school students' rights to free speech.

7. Samuel Alito

In January 2006, the stridently anti-choice Samuel Alito was sworn in to the US Supreme Court. Alito had previously argued that the strip-search of a mother and ten-year old girl without a warrant was constitutional and that women should be required to tell their husbands before getting an abortion.

Alito stated in a 1985 application to be Deputy Assistant Attorney General: "I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to abortion." For good measure, he added, "I am and always have been a conservative."

In October 2005, Paul Bonicelli was appointed as Deputy Assistant Administrator for the US international development agency's Bureau for Democracy, Conflict and Humanitarian Assistance (DCHA). Bonicelli's main prior claim to fame was being Dean of Academic Affairs at the fundamentalist Patrick Henry College, where the Student Honor Code mandates: "I will reserve sexual activity for the sanctity of marriage." Patrick Henry College also has a 10-part Statement of Faith which says that hell is a place where "all who die outside of Christ shall be confined in conscious torment for eternity."

In other words, a guy who thinks that non-believers "shall be confined in conscious torment for eternity" has been put in charge of promoting human rights across the world.

9. Eric Keroak

In 2006, Bush tapped Eric Keroack to be Deputy Assistant Secretary for Population Affairs at the Health and Human Services Department. Keroack opposes contraception, has described premarital sex as "modern germ warfare," and espouses the bizarre, unscientific belief that casual sex depletes "bonding" hormones. He was previously medical director of a Christian pregnancy counseling service which described contraception as "demeaning to women."

And that's who the Bush administration chose to oversee the distribution of $283 million in family planning funds for the nation.

Keroack resigned in March 2007, after state Medicaid officials began taking action against his private medical practice.

10. Susan Orr

Keroack was replaced by Susan Orr, who had been "Senior Director for Marriage and Families" at the anti-gay, anti-reproductive rights Family Research Council. In her prior career, Orr had opposed the emergency contraception RU-486 and gushed that Bush was "pro-life… in his heart" for withholding funds from international family planning groups which even discussed abortion.

Orr has claimed that contraception is "not a medical necessity." Yet she now is in charge of facilitating access to both contraception and sex education for low-income families across the nation.

—–

While presidential candidate George W. Bush insisted that he would put "competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy," his judicial and other appointments have proven otherwise. And these appointees will not leave office when Bush does.

Take Action

1. Oppose the nomination of Richard Honaker

NARAL Pro-Choice America has made it easy for you to urge your Senators not to support a lifetime judgeship for Richard Honaker. Check it out here:

2. Learn more about reproductive rights

How does your state stack up when it comes to reproductive rights? NARAL Pro-Choice America has a quick and easy way to find out via its "In Your State" index. For example, if you choose Wyoming, you'll find that the legislature is considering two anti-choice bills including one requiring women to receive a "state-mandated lecture, which may include medically inaccurate information, prior to obtaining abortion services and prohibits abortion unless women wait an additional 24 hours after receiving lecture." If you choose Tennessee, you will also find three separate anti-choice bills, including one "proposing a constitutional amendment to restrict low-income women's access to abortion." The site also lets you see your Congress members' reproductive rights voting records. Definitely worth a visit.

“Bush in the Bedroom” is partially excerpted from The Progressives’ Handbook: Get the Facts and Make a Difference Now, Vol.1, which hit #1 on Amazon’s political activism charts in December 07. Heather can be contacted at www.heatherwokusch.com.